Pena v. Lynch

Absent a few enumerated exceptions, the Illegal Immigration Reform and Immigrant Responsibility Act does not allow any court to review a final expedited removal order.

In 2012, William Pena illegally entered Texas from his home country of El Salvador. Shortly thereafter, the United States began expedited removal proceedings and began an investigation into Pena. Pena initially told a border patrol agent that he was not afraid for his safety if he were to return to El Salvador, but had come to the United States to join family members. Pena later wrote a statement recanting his initial interview, claiming he feared harm if he returned, and was seeking asylum. An asylum officer found Pena ineligible for asylum. An immigration judge also found Pena ineligible for asylum because he “had not established a credible fear of persecution on a protected ground.” The judge also advised Pena the decision was final and not appealable. Pena appealed, and the Board of Immigration Appeals dismissed for lack of jurisdiction. Pena sought a stay of removal and petitioned for review. The Ninth Circuit held that, absent a few enumerated exceptions, the Illegal Immigration Reform and Immigrant Responsibility Act does not allow any court to review a final expedited removal order. The panel found that Pena did not meet the requirements for an exception. Although the panel had no jurisdiction to review the immigration judge’s decision, the panel noted that Pena may have other remedies available outside of the administrative context. The panel explained that Pena was not deprived of any forum, only that one, therefore his argument of unconstitutional deprivation was defeated. DISMISSED.